Astute reader DeeJayQueue (I might not ever get used to referring to people by usernames) asked the following in the comments of the “Guitar Hero Vexes Rapidly Aging/Culturally Irrelevant Blogger Who Misses Jukeboxes Of The Non-Digital Variety” post earlier today:
Isn’t there some line in the copyright law about “public performance or rental” for video games? I hardly see how this is legal.
While this guest editor certainly enjoys pretending to be an expert, the public performance of video games is a legal issue I couldn’t even pretend to approach. However, there’s another underlying issue that’s near and dear to the Idolator heart: “Can ASCAP and BMI sue a bar for the music from Guitar Hero?” Remarkably, that issue is not covered on either organization’s Web site, and being passed around the phone tree at BMI proved to be ineffective in getting a response of any usefulness. However, seeing this selection from ASCAP’s “Frequently Asked Questions” page made me believe that even thinking about Van Halen’s rendition of “You Really Got Me” is probably illegal without a license.
What is a public performance?
A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet.
You need a license for hold music? I always wondered how the guy from Mannheim Steamroller got so rich, but now it’s become so clear.
Licensing: Frequenly Asked Questions [ASCAP.com]
Just a guess, but I assume once you purchase the Guitar Hero game you are in turn purchasing the license to play the game/songs on the console. As long as these bars are not charging to play the game, they would be within their rights to broadcast these songs.
Now, granted, I do not know if you need a license to operate a karoke machine, but I really don’t see how plugging in your 360 into a bar TV is any different then putting on a mix CD on the bar PA.
I would assume it was covered under the traditional performance rights license that all bars featuring music (i.e. all bars) are supposed to pay. So theoretically, these songwriters or publishers are getting paid twice, once when the games is sold, and now at the bar where it is played.
@Dead Air ummm Dead Air:
Putting on a cd in a bar does count as public performance and the owner would be required to pay a licensing fee. There was a post a week or two ago about this.
Though regardless of whether or not establishments are legally required to pay for the music, I’m sure there will be groups going after them for cash if this gets big.
@puffermedia: I was going to make some snarky comment about Shadows Fall, then I realized I have no idea what they sound like. I was just assuming they sucked.
Disclaimer: I Am Not A Lawyer, but I dated one once.
Of course, like most Karaoke machines, the Guitar Hero songs are re-performed cover versions and not (currently) the actual originals for which proper licensing would be a nightmare (unless you happen to be owned by Viacom).
I’m sure for public performance, standard ASCAP/BMI fees apply, just like karaoke. The songwriters and publishers get a check. They also got a check from HFA for the rights to record a cover version. But after that, I think they’re pretty much out of the equation – Wolfmother can’t sue some barkeep for playing “Woman” on the Playstation because it’s not actually them and all the proper paperwork has already been filed.
Or something like that.
This is why I only perform Public Domain Karaoke.
@puffermedia: What looks like a double payment is really the existence of two separate copyrightable events — the “reproduction and distribution” of the song for personal home use, and the “public performance” in the bar.
@DigitalLogic: Looking at some of the karaoke precedents, the necessary GH licenses would include public performance of the composition, a synchronization license (for matching the composition and moving images within the game), a motion picture license (to cover display of the game visuals to the public), and a sound recording public performance license (since there’s a “digital audio transmission” from the game to the public). Getting really exotic, one might claim that the composition license also needs to cover “derivative works” to address the mangling of the composition in the player’s performance.
Bottom line — bar owners will want to steer clear for a while.
Wow, great list there. Could use it to good use. Thanks